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SOFTWARE LICENSE AGREEMENT

(Last modified April 11, 2021)

Thank you for choosing our cloud and/or on-premise software product(s) (the “Licensed Products”).

We’ll start with the basics, including a few definitions that should help you understand this agreement. This is an agreement between the entity identified on the User (“you” or “your”) and Thaea, LLC. (“we”, “us” or “our”). During the Term (defined in Section 1(a)), we will provide the Licensed Products which may be further defined in the Statement of Work referencing these terms (“SOW”), if applicable. These terms and the SOW(s) are referred to collectively as this “Agreement”.  

1. License

a) The Licensed Products and all related materials are proprietary to us and our licensors and suppliers. As long as you comply with the terms of this Agreement, we will grant a limited, non-exclusive, non-transferable, license to access and use the Licensed Products during the Term. The “Term” is perpetual under the Admiral Maintenance Agreement. We are not selling the Licensed Products to you and, other than the license we are granting, we reserve all rights to the Licensed Products not expressly granted in this Agreement.

b) You are authorized to install and use the Licensed Products provided by us on a Computer, Router, or hardware. “Computer” means the server or server configuration or load balanced application servers, terminal or computer identified in a SOW on which the Licensed Products are authorized to be installed and used. “Router” means the network equipment, usually embodied in the form of a MikroTik RouterBOARD or software based Cloud Hosted Router (CHR) on which the Licensed Products are authorized to be installed and used.

2. Use of Licensed Products

a) The Licensed Products will be installed and used only at the location described in SOW or any other location as to which we have consented to the transfer of the Licensed Products in accordance with Section 2(c) (“Installation Site”) and only on the hardware provided by us or the Computer described in the SOW. Additional terms of authorized use will be described in your SOW and may include, among other things, limitations on: (i) the number of Users; and (ii) the number of routers managed using the Licensed Products. 

3. General Use Restrictions

a) For the Licensed Products, you will not: (i) make derivative works; (ii) sublicense, sell, rent, lease, lend, time-share, disclose, transfer or host the Licensed Products, Documentation or confidential or proprietary information to or for any other parties; (iii) use the Licensed Products to modify or reproduce third party material unless you have the legal right to do so; (iv) attempt to unlock or bypass any initialization system, encryption methods or copy protection device in the Licensed Products; (v) alter, remove or obscure any patent, copyright or trademark notice in the Licensed Products or Documentation; (vi) reverse engineer, decompile or disassemble or remove functions of the Licensed Products or any portion of them; (vii) make copies of the Licensed Products; (viii) modify, alter or change the Licensed Products; (ix) use components of a Licensed Product independent of the Licensed Products they comprise; or (x) extract any data from the Licensed Product and use such data for any purpose other than for your use of the Licensed Product.

b) You will not use the Licensed Products in the operation of a time-sharing or service bureau arrangement or as an application service provider. You will not allow access to the Licensed Products through any other means than those indicated in any SOW. 

4. Fees; Payment Terms

a) You will pay the fees for the Licensed Products, maintenance, training and any other fees described in SOW (which may include financing provisions). All fees and any applicable taxes are due and payable within 30 days from the date of our invoice. You will pay a late charge of 1.5% per month or the highest amount permitted by law, whichever is less, on any fees not paid by the due date. Unless otherwise identified in a SOW, all fees are stated in and will be paid in United States currency.

b) The fees do not include any amount for taxes. You will pay all sales, use, property, excise and other taxes imposed with respect to the products and/or services. If any sales, use, excise or other taxes (except for taxes based on our net income) are required to be collected, we will itemize them on invoices issued in connection with a SOW.

c) If the number of managed routers exceeds what is permitted by and/or paid for under the SOW, we may charge you for the appropriate license and software maintenance fees based on the excess and at the applicable rates then in effect.

5. Indemnity and Procedures

a) Subject to Section 5(c), we will indemnify and hold you harmless from all losses, damages, and reasonable costs and expenses arising out of a claim by a third party that the Licensed Products infringe or misappropriate any copyright, trade secret, trademark or patent. We will have no obligation to indemnify, defend and hold you harmless for any claim or suit that is based on Third Party Content (defined in Section 10) except to the extent that our licensor’s or suppliers of such Third Party Content have indemnified us.

b) If the Licensed Products are subject to a claim of infringement or misappropriation, or if we reasonably believe that the Licensed Products may be subject to a claim, we will at our option either: (i) replace the Licensed Products with functionally equivalent software; (ii) modify the Licensed Products while retaining substantively equivalent functionality; (iii) procure at no cost to you the right to continue to use the Licensed Products; or (iv) if (i), (ii) or (iii) are not commercially reasonable, we will notify you to terminate use of the Licensed Products. If we direct you to terminate use (or a permanent injunction is issued against such use), you will immediately do so and your remedies, in addition to this indemnity, will be limited to a pro rata refund of the current maintenance fees unused at the time of termination plus license fees previously paid for the Licensed Products that are subject to the infringement or misappropriation claim based on: (1) a term of 60 months following execution of the applicable SOW for a perpetual license; or (2) any pre-paid but unused fees for the balance of a term license. 

c) We will have no obligation to indemnify you if the infringement or misappropriation results from your: (i) modification of the Licensed Products; (ii) combination, operation or use of the Licensed Products with software products which are not ours; (iii) use of the Licensed Products in breach of this Agreement; or (iv) use of other than the most current release of the Licensed Products if a claim of infringement or misappropriation could have been avoided by your use of the current release of the Licensed Products, provided we delivered the superseding version to you and notified you of the need to use it.

d) You will indemnify, defend and hold us harmless from all claims and suits (including reasonable attorneys fees) against us by a third party based on: (i) any event described in Section 7(c) Warranty/Disclaimers that would cause the warranty in this Agreement to be inapplicable; or (ii) use of a release of the Licensed Products that is not the most current release made available to you to the extent that a claim or suit could have been avoided or mitigated by your use of the most current release.

e) You or we (the “Indemnified Party”) will give the other (the “Indemnifying Party”) prompt written notice of any matter with respect to which the Indemnified Party intends to seek indemnification under this Agreement (a “Claim”), provided, that the failure or delay in providing notice will not relieve the Indemnifying Party from any obligation to indemnify the Indemnified Party except to the extent that the failure or delay prejudices the defense of any Claim. The Indemnifying Party may, at its election, conduct and control the defense of the Claim with counsel selected by it, subject to the Indemnified Party’s consent, not to be unreasonably withheld or delayed. The Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in investigating and/or contesting any Claim. No compromise or settlement of the Claim may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent, which will not be unreasonably withheld or delayed. 

6. Software Maintenance; Training

a) We will provide software maintenance, feature upgrades and server maintenance as outlined in SOW.

b) We will provide documentation and product training as specified in the SOW. 

7. Warranty

a) Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

8. Limitation of Liability

A) YOU ASSUME FULL RESPONSIBILITY FOR ANY LOSS THAT RESULTS FROM YOUR USE OF OR INABILITY TO USE THE LICENSED PRODUCTS AND WE WILL NOT BE LIABLE FOR ANY SUCH LOSS. IF THE WAIVER OF LIABILITY IN THE PREVIOUS SENTENCE IS NOT PERMITTED BY LAW, OUR TOTAL LIABILITY FOR ALL CLAIMS MADE RELATING TO YOUR USE OF OR INABILITY TO USE THE LICENSED PRODUCTS IN ANY BILLING PERIOD WILL BE NO MORE THAN WHAT YOU PAID US FOR THE LICENSED PRODUCTS FOR THE PREVIOUS BILLING PERIOD.

B) WE WILL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFIT OR REVENUE, LOST POSTAGE, LOST BUSINESS OPPORTUNITIES, BUSINESS INTERRUPTION OR LOST DATA YOU MAY SUFFER UNDER ANY CIRCUMSTANCES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. 

9. Term; Termination

a) This Agreement will have an initial term of one (1) year (the “Initial Term”), which shall commence as of the acceptance date of this Agreement, and shall thereafter automatically renew for additional periods of one (1) year (any such “Renewal Term,” together with the Initial Term, the “Term”) unless either party provides written notice of its intention not to renew to the other party which will be effective upon receipt by such Party.

b)This Agreement may be terminated immediately by either Party for convenience upon receipt of written notice to the other Party.

c) A party may terminate this Agreement if the other party commits a material breach of this Agreement and fails to cure the breach within 30 days after receipt of written notice of the breach, or if either party becomes insolvent or files for bankruptcy.

d) We may terminate this Agreement under Section 5(b).

e) We can terminate immediately by giving notice to you, without opportunity to cure, if you breach Sections 3 General Use Restrictions.

f) Upon termination or expiry of this Agreement, you will stop using the Licensed Products and you will return the Licensed Products. You agree to return Admiral appliance to 325 Fieldstone Walk, Alpharetta GA, 30005 with properly packed and insured shipping.

g) You acknowledge that any breach of your obligations under this Agreement with respect to our or a third party’s proprietary rights or confidential information will cause us and/or the third party irreparable injury for which there exists no adequate remedies at law, and therefore we will be entitled to injunctive relief, without posting any bond, in addition to all other remedies provided in this Agreement or available at law.

10. Return Policy

If a hardware failure or malfunction occurs with the Licensed Products please contact support at admiral@remotewinbox.com. A replacement appliance or part will be provided as long as the Maintenance & Support agreement is active. 

If within the first 30 days you wish to return the appliance and request a refund, email us at admiral@remotewinbox.com with your request. A restocking fee of 20% (Not Including Shipping) will apply. For returns, once the Admiral server appliance has been delivered back to the Seller, the refund amount will be credited back into the account from which the product was purchased.

All returns and complaints after net thirty (30) days of the “Invoice Date” are subject to no refund or exchange.

11. LIMITATION OF LIABILITY

Except for a party’s payment obligations, neither party will be liable for any delays or failure in performance from any cause beyond their control. 

12. Assignment

You may not assign any of your rights under this Agreement to anyone else. We may assign or subcontract our rights to any other individual or entity at our discretion. 

13. Use of Information; Data; Publicity

a) We may collect and use information you provide to us or we obtain or which is derived from your use of the Licensed Products (including shipping information) or software maintenance and other services for the Licensed Products; provided that such information will be used for our internal purposes related to systems analysis and research, customer segmentation and/or the manner or method in which we conduct business with our customers.

14. Governing Law

a) These terms and conditions are governed by and construed in accordance with the laws of North Dakota and you irrevocably submit to the exclusive jurisdiction of the courts in that State or location.

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